K.T. v. H.T.

J-A19045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.T., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

H.T.,

Appellee No. 454 WDA 2015

Appeal from the Order entered February 27, 2015,

in the Court of Common Pleas of Lawrence County,

Civil Division, at No. 11297/06 CA

K.T., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

H.T.,

Appellee No. 462 WDA 2015

Appeal from the Order entered February 27, 2015,

in the Court of Common Pleas of Lawrence County,

Civil Division, at No. 11297/06 CA

BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 19, 2015

In these consolidated appeals, K.T. (“Father”) appeals from the Order

entered on February 27, 2015 (hereinafter “Custody Order”) which (1)

denied the competing Petitions for modification of the existing child custody

Order entered on October 3, 2013 (“the prior custody Order”), filed by

Father and H.T. (“Mother”), regarding their minor child, C.T. (“Child” or “C.”)

J-A19045-15

(born in February 2001); and (2) granted Mother special relief relating to

enforcement of the prior custody Order. The Custody Order continued to

award Mother sole legal, and primary physical, custody of Child, and granted

Father partial physical custody. The Order also included an enforcement

provision requiring law enforcement officials and child protective services

agents/employees to return Child to Mother, rather than Father or anyone

acting on behalf of Father, if Child removed himself from Mother’s physical

custody (discussed in detail below). Father also appeals from a separate

Order entered on February 27, 2015, which granted Mother’s Petition for

contempt concerning Father’s violation of the prior custody Order

(hereinafter “Contempt Order”). We affirm the Custody Order, and quash

the appeal from the Contempt Order as interlocutory.

The factual and procedural background of this matter is exhaustively

set forth in the trial court’s 91-page Pa.R.A.P. 1925(a) Opinion, which we

adopt and incorporate herein by reference. See Trial Court Opinion,

2/27/15, at 1-62. In the interest of conciseness and readability, we will

briefly set forth the relevant facts and procedural history herein.

The trial court summarized the background of this case, and the

parties’ positions, as follows:

The issues in this case revolve around the fact that [Child]

refuses to be in the custody of Mother and[,] in fact[,] has not

been in the physical custody of Mother since December [] 2013,

despite the terms of the [prior] custody [O]rder. Mother claims

that this circumstance [exists] because of the contemptuous

conduct of Father[,] who has engaged in a pattern of parental

alienation, turning [Child] against Mother[. W]hereas[] Father

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contends that this circumstance is brought about by the manner

in which Mother treats [Child], causing him to be in fear of her[,]

and [Mother’s] refusing to engage in any meaningful effort to

keep [Child] in her custody.

Id. at 2.

The parties have engaged in contentious and continuous litigation

since their separation in 2004, when Child was only three years-old. Before

the entry of the prior custody Order, the parties shared physical and legal

custody of Child, pursuant to a consent custody Order executed in March

2011. In the prior custody Order, entered on October 3, 2013, the trial

court awarded sole legal and primary physical custody of Child to Mother,

who is a dietician, and resides in Neshannock Township, Lawrence County,

Pennsylvania. The prior custody Order also denied Father’s Petition to

relocate Child from Lawrence County to Westmoreland County.1 Father is a

physician, employed as a professor at the Lake Erie College of Osteopathic

Medicine. Father moved to Westmoreland County in July 2013, and

presently resides there.2 Father’s long-time paramour, M.E.S., has a

residence in Neshannock Township, Lawrence County, located nearby

1

Father appealed the prior custody Order. This Court affirmed, after which

the Supreme Court of Pennsylvania denied allowance of appeal. K.T. v.

H.T., 104 A.3d 67 (Pa. Super. 2014) (unpublished memorandum), appeal

denied, 95 A.3d 278 (Pa. 2014).

2

Before the entry of the prior custody Order, the parties had lived in close

proximity to one another in Neshannock Township, Lawrence County, and

within the same school district.

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Mother’s residence, which we will hereinafter refer to as the “Fireside

residence” or “Fireside.”3

Despite the dictates of the prior custody Order providing Mother with

primary physical custody, Child began to refuse to stay at Mother’s

residence, approximately one month after the entry of that Order. Trial

Court Opinion, 2/27/15, at 7. Specifically, the trial court explained that

[Child] and Father began a procedure whereby Father drops

[Child] off at Mother’s house[. A]t the custody exchange time,

[Child] will either knock on Mother’s door and tell her that he is

not staying or simply walk through the backyards, and in either

case, proceed directly to the [Fireside residence] of … [M.E.S.]

Father will then email Mother[,] telling her that [Child] is at

Fireside.

Id.

In its Opinion, the trial court detailed several incidents involving Child’s

refusal to stay with Mother during her scheduled custodial periods. The first

of those incidents occurred on November 7, 2013, when Child left Mother’s

home, wearing only pajamas, at approximately 9:00 p.m., after which time

Mother called 911 and went to the police station. Id. at 8. At the police

station, Mother learned that M.E.S. had already picked up Child. Id. Child

did not return to Mother’s home. Id.

On December 16, 2013, Mother held a birthday party at her home,

after which Child spent the night at Mother’s home. Id. The following

3

Fireside is located approximately two-tenths of a mile from Mother’s

residence.

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morning, Mother transported Child to school. Id. Child told her that he

would return to her home after school, but he did not do so. Id.

Mother next saw Child on January 1, 2014, when Father dropped him

off at Mother’s residence at 8:00 p.m., whereupon Child immediately ran

away. Id. Mother and the maternal grandmother followed Child in Mother’s

car, and eventually caught up with him. Id. Child entered the back seat of

the car, but, as the car pulled into Mother’s driveway, Child jumped out and

began running away. Id. Mother and the maternal grandmother followed

Child again. Id. Child ran to the Fireside residence, and went inside. Id. at

8-9. Child thereafter came back out and got into the car with Mother and

the maternal grandmother, and they drove away, with the intention of

heading to the home of a female friend of Mother. Id. at 9. The trial court

explained what ensued as follows:

At an intersection, Mother could hear [Child’s] seatbelt unclick.

Fearing that [Child] was going to jump out of the car again,

Mother directed the maternal grandmother to proceed. Mother

turned around to grab [Child’s] leg. [Child] opened the door and

jumped out of the car. Mother’s finger got stuck in the seam of

his pants and ripped the bottom of his pants as he took off

running. Mother called 911 and tried to find [Child]. At the

direction of the police, Mother returned to her residence and

waited. The police eventually notified Mother that [Child] was

with Father.

This incident resulted in the filing of a [P]etition for

protection from abuse [“PFA Petition”] by Father[,] on behalf of

[Child,] against Mother in the Westmoreland County Court of

Common Pleas. After hearings before the Honorable Megan

Bilik-DeFazio, Judge Bilik-DeFazio … dismissed the [PFA

Petition]. Father filed a [P]etition for reconsideration[,] …

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[which] was denied.[FN 1]

Father appealed the PFA denial to the Superior Court,

which affirmed the decision of the trial court.[FN 2]

___________________________________________________

[FN 1]

In denying reconsideration, Judge Bilik-DeFazio referred to

the case as one of the most tragic custody cases she had ever

seen and one of the most tragic cases of parental alienation.

The judge found [Child] to be very deliberate, that he knows

what he is doing and that he is manipulating.

[FN 2]

In the court’s Pa.R.A.P. 1925(a) Opinion, the court found

that Mother’s testimony was credible, that Mother had never

threatened [Child], that Mother’s explanation of what occurred

on January 1, 2014 was reasonable[,] and that the testimony of

[Child] that Mother had threatened to kill him[,] and that he was

“fearful” of Mother, was not credible. In finding that [Child]

lacked credibility regarding his assertions that [] [M]other has

threatened him and physically abused him, the court noted that

[] [C]hild’s testimony was deliberate and calculated; that he did

not show emotion under the circumstances[;] and that[,] by his

conduct and demeanor, [Child] was operating under a clear

agenda to manipulate the [prior] custody [O]rder. The court

also commented on a cell phone video which shows that [Child]

is giving [] [M]other a hard time, [and] that he is talking back to

[] [M]other and being difficult and unreasonable, but that Mother

exercised a great deal of patience in dealing with [Child] and his

unacceptable behavior in that situation.

Id. (footnotes in original).

The trial court additionally stated as follows:

[Child] has not been with [] [M]other since the incident of

January 1, 2014. In the spring of 2014, Mother attended

[Child’s] band concert at Neshannock School and observed the

concert, but [Child] would not spend any time with her at that

event. Meanwhile, during this entire period of time, Father and

[Child] continued the procedure whereby Father will drop [Child]

off at Mother’s residence but [Child] will not stay[,] and will

proceed to the Fireside residence, where Father will pick up []

[C]hild. [Child] will videotape these events. He himself testified

that he videotapes his interaction with [] [M]other for use of the

videos in court.

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In connection with the proceedings before the

Westmoreland County Court of Common Pleas on the PFA

Petition that Father brought on behalf of [Child], Father arrived

at the Westmoreland County Courthouse on January 3, 2014. In

passing through security, Father was asked if he had any

weapons. Father denied having any weapons. Security

discovered in his briefcase a loaded Glock 9mm firearm and a

folding knife with a three and three-fourth[-]inch blade in

Father’s briefcase. Father was arrested and charged with

Possession of a Firearm and Other Dangerous Weapon in a Court

Facility pursuant to 18 Pa.C.S.A. § 913(a)(1). The disposition of

the charge was that Father entered the Accelerated

Rehabilitative Disposition Program for a period of six months.

Father testified that he had forgotten that he had the items in

his briefcase and that he generally carried a loaded firearm,

[which] he had obtained from a friend who was in the scrap

recycling business, for his own protection[,] as he was afraid

that Mother would harm him[,] and that generally[,] he carried

the loaded firearm to the efforts to [sic] effectuate custody

exchanges.

Id. at 10-11.

In relation to the prior custody Order, the trial court stated in its

Opinion as follows:

In awarding primary physical custody to Mother, the

[c]ourt found that Father demonstrated a desire to frustrate

Mother’s relationship with [Child]. The [c]ourt also found that

[Child] does want to conform to many of Father’s expectations,

and that [Child’s] desire to please Father is negatively affecting

his relationship with Mother. The [c]ourt noted that neither

Father nor [Child] could testify to any positive attributes Mother

possesses as a parent, thus indicating that [Child’s] emotional

connection to Mother is being hindered in some form[, and] that

[it] is having a devastating effect on his emotional security and

development. The [c]ourt also noted that, although the custody

evaluator, Dr. [Douglas] Darnell, made no specific findings of

parental alienation, [] Dr. Darnell’s evaluation was completed

prior to the fall of 2012, when [Child] began expressing his

animosity towards [] [M]other[. Additionally], … when Dr.

Darnell was presented with hypothetical questions regarding

behaviors displayed by [Child], he testified that those behaviors

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were consistent with behaviors exhibited by a child suffering

from parental alienation. The [c]ourt also indicated that

[Child’s] negative perception of Mother was irrational. The court

further concluded that Father’s actions have caused Mother’s

relationship with [Child] to suffer[,] and that he has enabled

[Child’s] unwarranted fears and trepidations of Mother. The

court also concluded, in awarding primary physical custody and

sole legal custody to Mother, that if Father was awarded such

custody, [Child’s] relationship with Mother would dissipate to the

point of disrepair.

Id. at 6-7 (footnote omitted).

While Father’s appeal from the prior custody Order was pending, the

parties filed several Petitions and Motions, which are more fully described in

the trial court’s Opinion; we adopt the trial court’s recitation herein. See id.

at 11-15. Most relevant to the instant appeal, on September 5, 2014,

Mother filed a Petition for contempt (“September Petition for contempt”),

asserting that Father had violated the prior consent Order by enrolling Child

in the public school district that serviced the area of Father’s residence in

Westmoreland County, without Mother’s consent or approval by the trial

court.

In November 2014, and January 2015, the trial court held a custody

trial with regard to the parties’ competing Petitions for modification of the

prior custody [O]rder, and Mother’s Petitions for special relief and contempt

in relation to that Order. On February 27, 2015, the trial court entered the

Custody Order, which dismissed the parties’ Petitions for modification of

custody, and granted Mother special relief relating to enforcement of a

particular provision of the Custody Order: paragraph 16. Paragraph 16

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provided that law enforcement and/or child protective services were to

return Child to Mother, regardless of the circumstances, if he runs away

from her home while in her custody.4

Also on February 27, 2015, the trial court entered the Contempt

Order, which, in relevant part, granted Mother’s September Petition for

contempt, based upon Father having unilaterally enrolled Child in a different

school district. Mother alleged that Father’s action violated a provision in the

prior custody Order providing that Mother was the sole legal custodian of

Child, and therefore, entitled to make all decisions concerning his education.

Notably to the instant appeal, the Contempt Order did not impose any

sanctions on Father.

Father timely filed Notices of Appeal from the Custody Order and

Contempt Order, along with two Concise Statements of Errors Complained of

on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In March 2015,

4

Paragraph 16 specifically provides as follows:

16. During the time that … Mother … has the right of physical

custody pursuant to this Order, [] [C]hild shall not be permitted

to be at the residence designated as … Fireside … without

Mother’s consent nor shall [Child] be permitted for any reason to

be placed in the custody or control of … Father … or [M.E.S.]

without Mother’s consent, and no law enforcement officer,

employee or agent of Lawrence County Child and Youth Services,

nor any other agency or authority, shall place[] [C]hild in the

custody or control of Father, during Mother’s scheduled primary

custody period, with the further direction that if for any reason []

[C]hild removes himself from Mother’s custody, he is to be

returned to Mother and not Father or anyone acting on Father’s

behalf.

Custody Order, 2/17/15, ¶ 16.

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Father filed in this Court a Motion to stay the Custody Order. Although we

entered an Order temporarily granting the stay, on April 1, 2015, we entered

an Order lifting the temporary stay and denying Father’s Motion, directing

Father to return Child to Mother two days later, at her residence.

Approximately one week later, Father filed a second Motion to stay the

Custody Order, which this Court denied.5

In his brief on appeal, Father presents the following issues for our

review:

I. Whether the trial court committed an abuse of discretion in

awarding sole legal and primary physical custody to Mother[,]

when the facts of record demonstrated that there was a

complete breakdown of the relationship between Mother and

[C]hild[,] and[,] for the past 14 months, that Mother had no

contact with [] [C]hild during this time, and despite having sole

legal custody[,] repeatedly failed to act in [] [C]hild’s best

interest in meeting [C]hild’s medical, dental, mental health and

educational needs?

II. Whether the trial court committed an abuse of discretion in

awarding primary physical custody to Mother[,] when the court

engaged in no analysis [concerning] the effect of such an

[award] on [] [C]hild as the circumstances existed at the time of

trial, [which] uprooted [] [C]hild from school friends and his

current life[,] and whether such an [award] was in [] [C]hild’s

best interest under the factors enumerated in 23 Pa.C.S.

[§] 5328[,] and when Mother presented no current evidence to

the [trial c]ourt as to her current ability to parent [] [C]hild as

required under M.E.V. v. F.P.W., 100 A.3d 670 (Pa. Super.

2014)?

5

At oral argument, on July 8, 2015, Father’s counsel informed this panel

that Child was placed in a foster care home, after having refused to return to

Mother’s custody. Father additionally brought this matter to our attention

via a post-submission Application for Supplement to the Record, which we

denied.

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III. Whether the trial court committed an abuse of discretion in

awarding primary physical and sole legal custody to Mother by

failing to properly consider and/or completely disregard the

uncontroverted testimony and opinion[s] of the [c]ourt-

appointed experts[,] and failing to mandate reunification

counseling[,] as recommended by the [trial c]ourt’s experts?

IV. Whether the trial court committed an abuse of discretion

when it found that Father had alienated [] [C]hild from Mother[,]

when there was no evidence presented of parental alienation[,]

[] neither expert testified that they believed there was parental

alienation[,] and the finding was based on pure speculation?

V. Whether the trial court committed an abuse of discretion

when it ordered that law enforcement and/or child protective

services were to return [] [C]hild to Mother[,] regardless of the

circumstances?

VI. Whether the trial court committed an abuse of discretion

when it found Father in contempt of the [prior custody] Order []

by enrolling [] [C]hild in school[,] as Father’s actions were not

an “intentional, designed act and one without justifiable excuse.”

Com. ex rel. Wright v. Hendrick, 312 A.2d 402[, 404] ([Pa.]

1973); the [prior custody] Order was not definite, clear and

specific; there was no volitional violation or wrongful intent;

Mother failed to provide for schooling pursuant to 24 P.S. [§] 13-

1327[,] the Compulsory School Attendance Law; when Father

was required to always consider [] [C]hild’s best interest, make

sure that [] [C]hild continued to attend school, continue other

activities beneficial to [] [C]hild’s overall growth and

development[,] and exercise daily parental responsibility when []

[C]hild was in his physical custody[; and] when Mother had

abdicated her parental responsibilities?

Father’s Brief at 11.6

In custody cases, our standard and scope of review are follows:

In reviewing a custody order, our scope is of the broadest type

and our standard is abuse of discretion. We must accept

findings of the trial court that are supported by competent

6

In his Concise Statements, Father set forth his issues somewhat

differently. Nevertheless, we determine that he preserved the issues for our

review.

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evidence of record, as our role does not include making

independent factual determinations. In addition, with regard to

issues of credibility and weight of the evidence, we must defer to

the presiding trial judge who viewed and assessed the witnesses

first-hand. However, we are not bound by the trial court’s

deductions or inferences from its factual findings. Ultimately,

the test is whether the trial court’s conclusions are unreasonable

as shown by the evidence of record. We may reject the

conclusions of the trial court only if they involve an error of law,

or are unreasonable in light of the sustainable findings of the

trial court.

C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted); see

also Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007) (stating

that “[a]n abuse of discretion is not merely an error of judgment; if, in

reaching a conclusion, the court overrides or misapplies the law, or the

judgment exercised is shown by the record to be either manifestly

unreasonable or the product of partiality, prejudice, bias or ill will, discretion

has been abused.”) (citation omitted). Additionally, this Court has observed

that

[t]he discretion that a trial court employs in custody matters

should be accorded the utmost respect, given the special nature

of the proceeding and the lasting impact the result will have on

the lives of the parties concerned. Indeed, the knowledge

gained by a trial court in observing witnesses in a custody

proceeding cannot adequately be imparted to an appellate court

by a printed record.

Ketterer v. Seifert, 902 A.2d 533, 540 (Pa. Super. 2006) (citation

omitted).

As the custody trial in this matter was held in November 2014, and

January 2015, the Child Custody Act (the “Act”), 23 Pa.C.S.A. §§ 5321 to

5340, is applicable. C.R.F., 45 A.3d at 445 (holding that, if the custody

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evidentiary proceeding commences on or after the effective date of the Act,

i.e., January 24, 2011, the provisions of the Act apply). With any custody

case decided under the Act, the paramount concern is the best interests of

the child. See 23 Pa.C.S.A. §§ 5328, 5338. Section 5338 of the Act

provides that, upon petition, a trial court may modify a custody order if it

serves the best interests of the child. Id. § 5338. Section 5328(a) of the

Act sets forth the various factors that a trial court must consider when

ordering any form of custody (collectively referred to as “the best interest

factors”). Id. § 5328(a).

We will address Father’s first and second issues together, since both

involve challenges to the trial court’s refusal to disturb the award of sole

legal custody and primary physical custody to Mother under the prior

custody Order. See Father’s Brief at 21-34. Pointing to Child’s repeated

refusal to stay at Mother’s residence during her custodial periods, Father

asserts that Mother and Child are estranged. Id. at 22-23. According to

Father, “Mother abandoned [Child] and any parental responsibilities for his

care, safety, or emotional well-being when he refused to stay with her.” Id.

Father cites McDonel v. Sohn, 762 A.2d 1101 (Pa. Super. 2000), Snarski

v. Krincek, 538 A.2d 1348 (Pa. Super. 1988), and Jones v. Stone, 495

A.2d 205 (Pa. Super. 1985), for the proposition that a parent’s lack of

involvement and abandonment of parental duties supports a modification of

custody and award of custody to another person, even to a non-parent.

Father’s Brief at 27-28.

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Father emphasizes that “the sole criterion in determining custody

disputes is the best interest and paramount welfare of the child.” Id. at 28-

29 (quoting M.E.V., 100 A.3d at 679) (emphasis in M.E.V., citation

omitted). Father points out the Court’s statement in M.E.V. that “a trial

court may not merely advert to prior, manifestly outdated findings of fact in

lieu of express and fully explained reconsideration of those factors in the

light of any changes in the parties’ circumstances that occurred after the

prior ruling and attendant explanation.” Father’s Brief at 27 (quoting

M.E.V., 100 A.3d at 681). Father additionally contends that the trial court

cannot “simply pay lip service” to the best interest factors in section

5328(a). Father’s Brief at 34 (citing C.B. v. J.B., 65 A.3d 946 (Pa. Super.

2013)). According to Father, the trial court’s Opinion “did not address which

factor(s) weighed in favor of which party, … or how the factors affected its

decision. Instead, the [t]rial [c]ourt came to the conclusion that Mother’s

relationship with [Child] was paramount to his best interests[,] without

reference to findings to support that conclusion.” Father’s Brief at 34.

Father argues that Child’s best interests are served by awarding

primary physical custody to him, as he is the only parent who has provided

for Child’s physical, intellectual, moral, and spiritual well-being during the

approximately fourteen-month period prior to the entry of the Custody

Order. Id. at 36. Pointing to this period of separation, Father contends that

“Mother offered not one scintilla of evidence … [as to] how she would keep

Child in her care should Father[]” not be granted relief. Id. Father further

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asserts that the trial court abused its discretion by failing to consider the

effect on Child of his immediate return to Mother and his removal from the

Hempfield School District (i.e., where Father had enrolled Child without

Mother’s consent), absent the provision of immediate therapeutic

intervention. Id.

In its Opinion, the trial court discussed the law concerning section

5328(a), set forth the best interest factors, and provided a thorough analysis

of each of the factors. See Trial Court Opinion, 2/27/15, at 62-80.7, 8

The

trial court’s analysis is sound and supported by the record, and we therefore

adopt and incorporate it herein for purposes of Father’s first and second

issues. See id.

After addressing the law and the best interest factors, the trial court

then stated in its Opinion as follows:

Although extensive proceedings have been held on the

[parties’] competing requests for modification, and for special

relief and findings of contempt, essentially nothing has changed

subsequent to the proceedings that resulted in the … [prior

c]ustody Order[,] except that [Child] adamantly refuses to be

with [] [M]other. [Child’s] recalcitrance to being with []

[M]other was recognized by the trial judge in the prior

proceedings. In the October [3], 2013 Opinion, the [trial] court

noted that Father encourages [Child’s] unreasonable

7

Effective January 1, 2014, section 5328 was amended to include an

additional factor at 23 Pa.C.S.A. § 5328(a)(2.1) (providing for consideration

of child abuse and involvement with child protective services). Although

applicable at the time of the custody trial in the present matter, there was

no evidence that would have required the trial court’s consideration of this

factor.

8

We note that the trial court’s discussion of factor 5328(a)(8) is not

preceded by a heading, but appears to begin on page 71.

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apprehension regarding Mother (Page 25); that Father has

demonstrated a desire to frustrate Mother’s relationship with

[Child] (Page 29); that if Father is awarded primary physical and

sole legal custody, [Child’s] relationship with Mother will

dissipate to the point of disrepair (Page 33); that the foregoing

analysis finds fault in Father for enabling [Child’s] unwarranted

fears and trepidations of Mother; the [c]ourt believes that

Father’s actions have caused Mother’s relationship with [Child] to

suffer, but the [c]ourt does not believe that Father’s actions

should be characterized as alienating (Page 33).

Although the trial court in the prior proceedings stops short

of characterizing Father’s actions as alienating, the court did

attribute [Child’s] unfounded perceptions of [] Mother to be

caused by Father’s actions[,] and [found] that [Child’s] thoughts

about Mother paralleled those of Father.[FN 3] The court’s

prediction proved to be true, that if [Child] were left in the

custody of Father, the relationship with [Child] and Mother would

only deteriorate. However, the circumstance that allowed Father

to have the custody was not brought about by court order, but

by the fact that [Child] simply refused to be with Mother[.]

___________________________________________________

[FN 3]

More recently, Mother filed an injunction proceeding against

[M.E.S.,] seeking to enjoin her from interfering in the custody

matters. [H.T. v. M.E.S.], No. 1091 of 2014, C.A. The same

trial judge [who] issued the … Custody Order in this case denied

injunctive relief, but in a Pa.R.[A.]P. 1925(a) Opinion[,] found

that the “root of [] [C]hild’s behavior seems to have been

derived from [Father].” (Pa.R.A.P. 1925(a) Opinion dated

February 4, 2015, page 10[)].

Trial Court Opinion, 2/27/15, at 81-82 (footnote in original).

Our review of the record demonstrates that the trial court thoroughly

considered each of the best interest factors, and its Custody Order sought to

render a custody award in Child’s best interests. Contrary to Father’s

assertion, the record reflects that the trial court did not merely rely on

outdated findings. Rather, the court expressly and fully explained its

consideration of the best interest factors, in light of the parties’ actions, as

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concerns Child’s best interests, following entry of the prior custody Order.

The trial court determined that Mother had not abandoned Child, but,

instead, Child, with Father’s assistance, had acted to obviate the prior

custody Order and deprive Mother of her court-awarded custody. Further,

the trial court found that, under the circumstances, Child’s best interests are

served by maintaining the prior custody Order, awarding sole legal custody

and primary physical custody to Mother, and dismissing the competing

modification Petitions. We discern no abuse of discretion or error of law in

the trial court’s analysis, and its findings are supported by the record.

Accordingly, we affirm based on the trial court’s Opinion regarding Father’s

first two issues, see Trial Court Opinion, 2/27/15, at 62-82, and conclude

that these issues lack merit.

Next, we address Father’s third and fourth issues together. In his

third issue, Father contends that the trial court abused its discretion by (1)

awarding sole legal custody and primary physical custody to Mother in

disregarding, or failing to adequately consider, the uncontroverted testimony

and opinions of the court-appointed experts; and (2) failing to mandate

reunification counseling, as recommended by these experts. See Father’s

Brief at 39-42. Father alleges that Dr. Martin Myers (“Dr. Myers”), the

court-appointed psychologist who evaluated Child, testified that Child is

flourishing in Father’s custody, and recommended that Mother and Child

engage in counseling, and that Mother and Father each participate in

counseling. Id. at 37. Father states that Dr. Bruce Chambers (“Dr.

- 17 -

J-A19045-15

Chambers”), the court-appointed custody evaluator who performed an

updated custody evaluation, testified that it would be problematic to return

Child to Mother’s custody without therapeutic intervention. Id. at 40.

Father argues that the trial court’s Order directing the immediate return of

Child to Mother is against the weight of the evidence and against the

uncontroverted testimony of these two experts. Id. at 41. According to

Father, the trial court improperly rejected Dr. Chambers’s testimony. Id. at

41-42. In support of this argument, Father relies on Murphey v. Hatala,

504 A.2d 917 (Pa. Super. 1986), for the proposition that it is an abuse of

discretion for the trial court to accept as unpersuasive, and to totally

discount, uncontradicted expert testimony. Father’s Brief at 41.

In his fourth issue, Father argues that the trial court abused its

discretion when it found that he had alienated Child from Mother, where

there was no evidence of parental alienation and neither Dr. Myers nor Dr.

Chambers had opined that there was parental alienation. Id. at 46-48.

According to Father, the trial court’s finding of parental alienation was based

on pure speculation, and Mother’s mere allegations. Id. at 46-47.

Additionally, Father asserts that “[n]early all of the evidence of record

supports that it was Mother’s actions, not Father’s, that were estranging her

from [Child]. Particularly relevant was Mother’s complete rejection of [Child]

for a period of over 14 months, a fact the trial court summarily ignores in its

Opinion.” Id. at 47.

- 18 -

J-A19045-15

In M.A.T. v. G.S.T., 989 A.2d 11 (Pa. Super. 2010) (en banc), this

Court held that a trial court may not simply dismiss uncontradicted expert

testimony unless the court’s independent determination is supported by the

certified record. Id. at 19-20. Although a trial court is not bound by the

custody evaluator’s conclusions, it must actually consider the expert’s

analysis. Id. at 20. The M.A.T. Court held that “[s]o long as the trial

court’s conclusions are founded in the record, the lower court was not

obligated to accept the conclusions of the experts.” Id. (citation omitted);

see also King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (stating that,

if the certified record supports a trial court’s conclusions in a custody matter,

the trial court is not required to accept an expert’s conclusions and

recommendations).

In its Opinion, the trial court provided a detailed explanation for its

rejection of the expert testimony of Drs. Chambers and Myers, as concerns

section 5328(a)(8) of the Act (i.e., the best interest factor pertaining to

parental alienation), and set forth ample evidence in the certified record

supporting the court’s determination that Father had engaged in alienation.

See Trial Court Opinion, 2/27/15, at 71-77, 83-86. Since the trial court’s

recitation of the evidence, and the court’s determinations, are sound and

supported by the record, we incorporate them herein with regard to Father’s

third and fourth issues. See id.; see also M.A.T., 989 A.2d at 19-20. We

affirm on this basis in rejecting Father’s third and fourth issues, as we

conclude that the trial court properly exercised its discretion in finding that

- 19 -

J-A19045-15

Father engaged in parental alienation, and in not following the custody

experts’ recommendations. See Trial Court Opinion, 2/27/15, at 71-77, 83-

86; see also King, 889 A.2d at 632.

In Father’s fifth issue, he argues that trial court abused its discretion

when it directed, in paragraph 16 of the Custody Order, that law

enforcement and/or child protective services must return Child to Mother if

he runs away from her home while in her custody. See Father’s Brief at 42-

46. Father posits that, if Child refuses to stay with Mother, the effect of the

provision is essentially an adjudication of Child as dependent, since it

prohibits Child from being placed in Father’s custody. Id. at 42-43. Father

argues that the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. (governing the

adjudication and disposition of delinquent and dependent children), does not

provide for a restriction on the placement of a dependent child prior to an

adjudication of dependency. Father’s Brief at 44. According to Father,

paragraph 16 (1) excuses Lawrence County Children and Youth Services

(“CYS”) from meeting its burden to establish Child’s dependency under the

Juvenile Act, id. at 42-43; (2) violates Father’s due process rights, id. at 43;

and (3) violates the statutory mandate set forth in section 6301 of the

Juvenile Act, 42 Pa.C.S.A. § 6301(b)(1), requiring the preservation of family

unity whenever possible. Father’s Brief at 45. Finally, Father maintains that

the trial court has scheduled a dependency hearing concerning Child, who is

still in placement. Id.

- 20 -

J-A19045-15

Our review of the record reveals that trial court created paragraph 16

of the Custody Order in response to Mother’s request for special relief for

enforcement of the prior custody Order. See Trial Court Opinion, 2/27/15,

at 81. The prior custody Order had granted Mother primary physical

custody, but Child was obviating that Order by running away from Mother’s

residence. In light of Child’s repeated refusal to see Mother,9 the trial court

determined that this enforcement provision was necessary to ensure that the

award of primary physical custody to Mother was enforced. See id. at 82

(stating that “the circumstance that allowed Father to have the custody was

not brought about by court order, but by the fact that [Child] simply refused

to be with Mother[. T]hat circumstance has been allowed to exist without

being specifically addressed by the court relative to the aspect of

enforcement of the [prior custody] Order.”). We determine that the trial

court’s analysis supports its decision to grant Mother’s request for special

relief for enforcement of the prior custody Order.

Moreover, as support for his argument that paragraph 16 is

inappropriate for a custody order, Father relies generally on the Juvenile Act

and case law under its statutory provisions. However, paragraph 16 does

not refer to the Juvenile Act, nor does this Court have an appeal before it

under the Juvenile Act. Father asks this Court rule on a matter raised in his

9

In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth its analysis and

legal support involving the refusal of a child to visit his parent, which we

incorporate herein by reference. See Trial Court Opinion, 2/27/15, at 82-

83.

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J-A19045-15

second Motion for stay, which we denied until the matters raised therein are

addressed by the trial court. In effect, Father would like this Court to

prematurely rule on dependency proceedings that are before the trial court;

we may not do so. See Pa.R.A.P. 302(a). Accordingly, we discern no abuse

of discretion by the trial court’s entering paragraph 16 in the Custody Order.

Father is therefore not entitled to relief on his fifth issue.10

Finally, Father argues that the trial court abused its discretion when it

found him in contempt of paragraph 2 of the prior custody Order, which

granted Mother sole legal custody of Child, and the authority to, inter alia,

make major decisions concerning Child’s education. See Father’s Brief at

48-53. Concerning Father’s unilateral enrollment of Child in the Hempfield

School District, prior to the commencement of the 2014-2015 school year,

Father asserts that “[b]y the Fall of 2014, Mother had not taken care of

[Child], nor acted as [Child’s] custodial parent,” and “Mother made no

efforts for appropriate schooling or enrollment for [Child], since he was not

staying in her house.” Id. at 48, 49.

It is well-established that “each court is the exclusive judge of

contempts against its process.” G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super.

2013) (citation omitted). Additionally, “[t]his Court must place great

10

We additionally observe that there is no information in the certified record

regarding Child’s allegedly pending juvenile adjudication and disposition,

and/or his placement. See Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.

Super. 2006) (en banc) (stating that an appellate court is limited to

considering only the materials in the certified record when resolving an

issue).

- 22 -

J-A19045-15

reliance on the sound discretion of the trial judge when reviewing an order of

contempt[,]” and we will not disturb a trial court’s findings on a contempt

petition absent a clear abuse of discretion. Id.

To sustain a finding of civil contempt, the complainant must

prove certain distinct elements by a preponderance of the

evidence: (1) that the contemnor had notice of the specific order

or decree which he is alleged to have disobeyed; (2) that the act

constituting the contemnor’s violation was volitional; and (3)

that the contemnor acted with wrongful intent.

P.H.D. v. R.R.D., 56 A.3d 702, 706 n.7 (Pa. Super. 2012) (citation

omitted).

Here, the trial court found that Father’s enrollment of Child in the

Hempfield School District, violated paragraph 2 of the prior custody Order.

Trial Court Opinion, 2/27/15, at 89-90. The trial court also found that

Father had acted without the approval of the court or the consent of Mother,

who had sole legal custody. Id. Additionally, the court determined that

Father had acted intentionally and willfully, pointing out the Hempfield

School District enrollment form completed by Father, wherein he stated that

he had custody of Child. Id. at 90. The trial court, therefore, granted

Mother’s September Petition for contempt. Id. at 90-91. However, the

court deferred the imposition of sanctions, pending the opportunity for

Father to purge himself of the contempt. The Contempt Order, at paragraph

5, provides the following purge condition:

5. [Father] shall purge himself of contempt by strictly complying

with all provisions of the [C]ustody [O]rder entered

contemporaneously with this Order and any subsequent orders

in this case. [Father] shall be deemed to have purged himself of

- 23 -

J-A19045-15

contempt if he remains in compliance for a period of (6) months

from the date of this Order.

Trial Court Contempt Order, 2/27/15, ¶ 5.

We conclude that Father’s appeal from the Contempt Order is

interlocutory, as the Order imposes no sanctions on him. See Genovese v.

Genovese, 550 A.2d 1021, 1022 (Pa. Super. 1988) (stating that, unless

sanctions are imposed, an order declaring a party in contempt is

interlocutory, and that a threat to impose sanctions in the future is neither

final nor appealable). We, therefore, quash Father’s appeal from the

Contempt Order at Docket No. 462 WDA 2015 as interlocutory.11, 12

Appeal at Docket No. 454 WDA 2015 affirmed; appeal at Docket No.

462 WDA 2015 quashed as interlocutory.

11

On April 2, 2015, this Court issued a Rule on Father, directing him to show

cause as to why this appeal should not be quashed as interlocutory. Father’s

counsel responded by claiming that the trial court used the contempt finding

in its custody ruling in relation to the Custody Order. On April 17, 2015, we

discharged the Rule, pending a review by this panel. Upon our review, we

determine that the trial court, in making its Custody Order, did not rely upon

the contempt finding. Rather, the trial court considered Father’s unilateral

actions in enrolling Child in the Hempfield School District, without the prior

consent of Mother or the approval of the trial court. While these same

actions were the basis for the trial court’s contempt finding, the contempt

finding was not the basis for the court’s decision to maintain the prior

custody Order in place. See Trial Court Opinion, 2/27/15, at 87-90.

12

In her brief, Mother requests the imposition of costs on Father. See

Mother’s Brief at 19. However, she has not filed a motion for costs or

developed the request; accordingly, this claim is waived. See In re W.H.,

25 A.3d 330, 339 n.3 (Pa. Super. 2011) (stating that “where an appellate

brief fails to provide any discussion of a claim with citation to relevant

authority or fails to develop the issue in any other meaningful fashion

capable of review, that claim is waived.”); see also Pa.R.A.P. 2119(a).

- 24 -

J-A19045-15

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/2015

- 25 -

:r- AtjO 45- IS Circulated 09/23/2015 11:13 AM

K.,..,, Plaintiff

IN THE COURT OF COMMON PLEAS

LAWRENCE.COUNTY, PENNSYLVANIA

vs. · :. NO. 11297 OF 2006, C.A.

.

APPEARANCES

For Plaintiff: Richard B. Sandow, Esq.

c. Kurt Mulzet, Esq.

Stephanie T.' Anderson, Esq.

Jones, ·Gregg, Creehan &

Gerace, LLP

411 seventh Avenue

suite 1200 · .

Pittsburgh, PA 15219

· For Defendant: Ri~hard Ducote, Esq.

Erica Burns, Esq.

Ri~hard oucotei PC

4800 Liberty Avenue

3rd Floor

Pittsburgh, PA 1522'4

OPINION

MOfio, P.J. FEBRUARY 27, 2015

T-, In this custody dispute presently'before the court,

(hereinafter "Mother") seeks enforcement·of the order of

court dared October 1, 2013 issued by the· aonorab 1 e Thomas M.

Hllllf

· Piccione which granted her. so 1 e 1 ega 1 and primary phys i. ca 1

custody of the minor child, clllllll TIIIII, born February 10,

ioq1, and, further, seeks modi f'i catrion .9f that· custody order by

· ~~~·~·d·i-~g· ·h~·~. . :s~l·e . . p.h·y·si ·cal·. ·.·c~·s·tody. . .arid .... p. r'ovi d ;·h~r··Father· . wi th-- .

S3FID

closely supervised visitation, as. opposed to partial custody.

JUDICIAL

DISTRICT

IRF!NCI!: COUNTY

11:NNSY~V ... NIA

Circulated 09/23/2015 11:13 AM

October 1, 2013 custody order by awarding him the sole legal and

physical custody of cllllll, with ctllllllllll's further contact with

Mother to be as may be advised th rough reuni fi cation counse 1 ing .

. The issues in this case_revolve around the fact that '11111111

refuses to be in the custody of Mother and in fact has not been

in the physical custody of Mother since December of 2013,

despite the terms of. the October 1, 2013 custody order , Mother

claims that this circµmstance is because of the contemptuous

ali.enation, turning c-

conduct.of Father who has engaged in a pattern of parental

against Mother; whereas, Father

in which Mother treats ·c-,

contends that this circumstance i's brought about by the manner

causi.ng him to be in fear of her

and refusing to engage in any meaningful effort to keep <111111

in her custody.

The record of this case will reflect that the parties have

engaged in continuous litigation since their separation in 2004.

I

The custody liti§ation originally began in the court·of common

Pleas of Allegheny county, Pennsylvania, with jurisdiction being

transferred to this court in August of 2006. The court will not

here recant the entire procedural history of the case since

2006; however, the opinion of Judge.Thomas M. Piccione in

support of his October 1, 2013~ order provides a detailed

procedural history up to the point of the order of October 1, ·

io13. The court will, however, review the history of this case

...... R M,_ ,.

from March 15, 2011';.... tfi'e... date .. orr . whi-ch-a-:consent-€-ust-0dy-. o.rdat..; . _ . . . - . . .

53RD

was entered, in order to provide some perspective on this cas.e.

JUDICIAL

DIS'rRICT

RENC!t COUNTY

NN5Vt.VANIA

2

Circulated 09/23/2015 11:13 AM

The March 15, 2011, order provided the parties with shared

..

legal and shared physical custody with Mother and Father to

exercise custody on an alternating weekly basis, with exchanges.

to take.place on Sundays at 5:00 p.m. At this time, the parties

had lived in close proximity to one another in Neshannock

Township, Lawrence county, and within the same· school district.

The parties, however, were unable to communicate with one

another~ and litigation followed which resulted in the court

appointing a guardian ad litem for conner

.

and requiring

. the

.

court to hear emergency· relief petitions addressing such things

as ctllll's extracurricular activities, which dentist he would

reat withr and issues surrounding Father's efforts in obtaining

a passport.

on·september 17, 2012, the guardian ad litem for clllf

presented a motion.for leave of court to withdraw. The basis

for this request was that Father had taken cllll to the office

of the guardian ad litem; ctllll informed the guardian ad litem

that he

. no longer wanted

. .

to work with the guardian ad litem;

and, thereafter, c"'9 walked out of the office of the guardian

ad l item with his Father. The guardian ad 1 i tern was given leave·

to.withdraw.

A 1 so on September 17, 2012, Mother fi 1 ed a peti t icn for

protection from a~use against Father alleging that on September

· 16, · 2012, a verbal altercation occurred between Mother and

'·Father, "fofti"ed-Tn - by Father's 91 rTfri encr;-M··-s-;-arrd•"'"' ~ .

53FtD

that Father and Ms. sllllhad threatened her during the

JUDICIAL

DISTRICT altercation.

'fRENClt COUNTY

E:NNDYI..VANIA

3

Circulated 09/23/2015 11:13 AM

on October 15, 2012, Father presented a motion for

emergency custody order, wherein Father alleged that Mother and

Maternai Granafather were attempting to intimidate.cllll in

regards to the custody dispute and.that Mother had physically

attacked cllllll on September 30, 2012.

on November 28, 2012, Father filed a petition for contempt

alleging.that Mother was in violation of existing orders of

court for permitting third parties.to attend custody exchanges

and dis~ussing the·proceedings with ctlllllll'· Father also filed a

petition for protection from abuse against Mother on c4lllll's

beha1 f on November 29, 2012 ·, a11 eg·i ng that on Sunday, November

25, 2012., Mother physically grabbed

confiscate

Father.

the child' s ce11 phone when c-

CIIIIIJ in an attempt to

The petition further· alleged that Mother's.father

attempted to ca 11

(hereinafter "Maternal Grandfather")

residence and forced himself into c-'?

arrived at Mother's

room, pinning

on the ground, and striking ct111111's head against the floor.

c-

The next day, November 30, 2012, Father filed another protection

from abuse petition alleging that.Mother threatened Cllllf on

November 29, 2012 by refusing to provide c& with food or

drink until Ctlllllf wrote a letter to ·Maternal Grandfather and

.that Mother became physically violent with Ctlllllf and prevented

him from leaving her residence.

Al1 of the f~regoing petitions for protection from abuse,

motricns for emerge~cY. custody order , . . . ana·ccfrit.empt--pe-ci·ttons ·were ......

53RD

dismissed by the court after hearing, and on February 6, 2013,

JUDICIAL

DISTRICT the court· entered an order reinstating the March 15, 2011

VRENC~ COUNTV

ENNSYI.VANIA

4

Circulated 09/23/2015 11:13 AM

custody consent order which provided for shared physical and

legal cµstody. Additionally, the court directed the parties to

begin counseling for c3 's benefit.

By May 30, 2013 both pa.rti es had filed competing claims for

primary custody; however, on June 18, 2013, Father filed a

notice of re'locatrion proposal, ·which was objected to by Mother.

The rel9cation reque~t came about ·pecause Father had relocated.

to Greensburg, Westmoreland county, Pennsylvania for reasons

related to his employment.

on August 20, 2013, a six-day.custody and· relocation

hearing commenced, which resulned in the October 1,. 2013 order.

The proceedings before Judge Piccione addressed the issue

of cs 11 being anxious about seeing Mother for any per+od of

time, with eve~ts or c eith~r running from his mother or

not showing for custody exchanges. Mother acknowledged that

prior to the fall of 2012, her relationship with c was

normal; but that in November of 2012·C&L (,s attitude towards

his mother began to change. In November of·2012, Father began

calling c while c was at Mother's house and having

extensive phone conver-sat lons that would las~ for hours.

contrary to the description of events that occurred on November

2 5 ~ 2012 indicated by c-, Mother . recoun.ted that c:••

arrived ·at her house and·would not ·speak to her; that c was

on the phone with Father for an extended period of time and .· .. ··.

... . . . wou 1 d ·-· no't get . ··-~ff . of the phone .'-At about ·9: 00 c 5 gotC'fff-of·---- . _ .

the phone with Father and came out of his room screaming "you ' re

S3PCD

JUDICIAL.

DISTRICT going to kill me". Mother was unable to· calm cc 7 down so she

·YRS:NC&: COUNTY

·e:NNSYI.VANIA

5

Circulated 09/23/2015 11:13 AM

called her par~nts for help. When Maternal Grandfather arrived

at the residence, Clllllfbarricaded himself in his bedroom

against his door » · Maternal Grandfather 'had to force his way

·into c 's bedroom causing c to be pushed across the

floor. c then threw himself on th,e ground, thrashing his

arms and legs and slamming his head on the ground .. Mother and.

Maternal Grandfather physically restrained ca f by·holding

down his arms and iegs until he regained control of himself_.

After this incident, a'period of.time e~sued wh~re Mother

did not see c:111111~because of the pending_ protection from abuse •, I

p~titions and the litigation that flowed therefrom. In. February

of 2013, c-•

again began staying at Mother's residence and

the parties continued to alternate custody on a week-on and·

week-off basis, which continued.until the custody order was

. . 3

entered by Judge· Piccione on. October ;.J:'~ 2013. ··1n awarding

. .

prima~y physical custody to Mother, the court found that Father

demonstrated a desire to frustrate Mother's relationship with

cs ?. The court also found that c S does want to conform

' I

to manyof Father's expectations, and that c•••t' s desire to

p'lease .Father is negatively affecting hf s relationship with

Mother. The CQurt further.noted that neither Father nor c a

.cou'ld testify to any positive attributes Mother possesses as a

parent,:thus indicating that c1111111t's emotional connection to

·-Mother is bei,ng hindered in soine form that is having· a

.. ':devastating. effect ·on"'lns"' emo"ti onal-se"cu r,-tyand deve-lopm-en-i-:··· ..... ·-· - .

53RO

The cou~t also noted that, although the custody evaluator, Dr.

JUDICIAL

OISiRICT Darnell, made no specific findings of parental alienation, that

<RltNCE COUNTY

V.:NN$VLVANIA

6

Circulated 09/23/2015 11:13 AM

Dr. Darnell's evaluation was completed prior to the fall of

2012, when c:•• began expressing his animosity towardshis

mother, and that when or. Darnell was presented with

hypothetical questions regarding behaviors displayed by c....,,

he testified that those behaviors were consistent with behaviors:

exhibited by a .child suffering from parental alienation. The

court a1 so indicated that cg §' s negative percept'i on of Mother

was irrational. The court further concluded that Father's

actions have caused Mother's relationship with c•• to suffer

and that he has enabled c••' s. unwarranted fears and

·trepidations of Mother. The court also concluded, in awarding

primary physical custody and sole legal custody to Mother, that

if Fat~er was awarded such custody, C & • 's rel ati onshi p wi.th

· Mother ~ould dissipate to the point of disrep~ir.1

Approximately one month after the October 1, 2013 custody

order, c•• began refusing to spend any time with his mother.

c and Father began a procedure whereby rather drops ct S

off at Mother's house; at the custody exchange time, Gr FT will

either knock on Mother's door and tell her that he is not

staying or simply walk through the backyards, and in either

case, proceed directly to the residence of Fither's girlfriend,

located near Mother's ·residence and identified as the Fi reside 11

Residence". Father will then email Mother telling her that

c is at Fireside.

·-·--· ... ·····--·-······--- __ . -·····-..·-------·--- - _ _ . --.,.- _. __ ,.

53RD

JUDICIAL. 1 JUdQe Piccione's order of October 3, 2013 was appealed by Father to the

DISTRICT super, or court of Penns,yl vani a, which affirmed the October 3, 2013 order in

its opinion filed May 30, 2014.

IIRENCE COUNTY

'l!NNSYLVANll,

7

Circulated 09/23/2015 11:13 AM

on November 7, 2013, c J$ was at his mother's residence.

At about 9: 20 p. m. Ctllll got out of bed, went into the bath room

and then immediately canie back out and went down the steps and

out the front door. The weather was cold, with ice and snow,

and cllllllll'wa~ wearing nothing but pajamas. Mother called 911.

Mother then went to the police station. While she.was at the

police station; the police informed her that they had received a

call from Father stat~ng that Father's girlfriend had picked

taken him to cranberry and that they were on the

way back from cranberry.: c did not immediately return to

Mother's home.

came to Mother's house on December 16, 2013 after

school and spent the night .. The next day, Mother took c to

school. A birthday party ·had been held at Mo~her's house on the

night of December 16, 2013, and company was oyer. The next

morning~ Mother took c to school and asked him if he was

coming to her house after school. c said "Yes." Mother

said that she would see him after school and that she loved h.im,

and c said "Love you, Mom" and got out of the car.

aowever, c did not go to his mother's home on December 17,

2013, and the next time that Mother.saw c ~as on January 1,

2014. on that date, Father dropped c off at about 8:00

p.m. and er O took off running. Mother and the· maternal

grandmother got into their car to follow him. Cf S got into

.. ··~~-·-··

·······-

the back·:··of the car, hut-as- tney pulled. JnrcHnto-the·tr----···· -······ ....

53RD

driveway, ca: a jumped out and took off running again. Mother

JUDICIAL

DISTRICT and her mother followed him again. Cl A went back to the

IRltNCE COUNTY

~NNSYLVANIA

8

Circulated 09/23/2015 11:13 AM

Firesiae residence and went inside. Clllllt came back out and

got back into the vehicle and they drove away. Mother and. the

maternal grandmother decided that they would go to,the home of

Mother's girlfriend. At an intersection, Mother could hear

c 's seatbelt unc1ick. Fearing that cu CT was going to

jump out of the car.again, Mother directed the maternal

grandmother to proceed. Mother turned around to grab C 's

leg. c opened the door and jumped out of the car.·

Mother's finger got stuck in the seam of his pants and ripped

the bottom of his ·pants as he took off running. Mother called . ;

911 ~nd tried t~ find c At the direction of the police,

Mother returned to her residence and waited. The police

-eventua11y notified .Mother· that cg was with Father.

This incident resulted in the filing of a petition for

. .

protection from abuse by Father-on behalf of c against

Mother in the Westmoreland county court of common Pleas. After

hearings before the Honorabl~ Megan Bilik-DeFazio, Judge Bilik-

oeFazio by order d~ted February 5, 2014 dismissed the protection

from abuse petition. Father filed a petition for

reconsideration and by order dated April 2, 2014 the motion for

reconsideration was denied.2

Father appealed the PFA denial to the superior cour-t , which

affirmed the decision of the trial court.3

·····- . ---· --·-··- . ,. · --- . ----·-~····-····--"'\'"-

.2 In .denying reconsi de rat, on, ·j"udgel:fiTfl<=oeFl1Z'tcrreferrerl-·to-the-eas-e . -as-one----- ... - . .....

of·the most tragic custody cases she had ever seen· and 1one·of the most tragic

cases of parental alienation. The judge found c... to be very deliberate,

53RD that he knows what he is doing and that he is manipu1ating.

JUDICIAL 3In the court's Pa.R.A.P. 1925(a) opinion, the court found that Mother's

DISTRICT restfmony was credible that Mother had never threatened c_.,, that

Mother's explanation oJ= what occurred on January 1, 2014 was reasonable and

fRl!:NClt COUNTY

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c has not been with his mother since the incident of

January 1, 2014. In the spring of 2014,.Mother attended

c 's band concert at Neshannock School and observed the

concert, but c111..•would not spend any time with her at that

event. Meanwhile, during this entire period of time, Father and

c contin.ued the procedure whereby Father will drop c1 I

off at Mother's residence but c will not stay and will

proceed to the Fireside residence, where Father will pick up the

child. conner will videotape these events. He himself

testified that he videotapes his interaction with his mother for

use of the videos in court.

In connection·with the proceedings before the Westmoreland

county court of common ·Pleas on the PFA Petition that Father

~rought on beh~lf.of cm F, Father arrived at the Westmoreland

county courthouse ·on January 3, 2014. In passing 'through

security, Father was asked if he had any weapons. Father denied

. .

having any weapons. security discovered in his ·briefcase a

loaded Glock 9mm firearm and a folding knife with a three and

three-fourth inch blade in Father.' s briefcase. Father was

arrested and charged with Possession·of a Firearm and other

oangerous·weapon in· a court Facility pursuant to 18 Pa.c.s.A.

§913(a)(l). The disposition of the· charge was that Father

that the testimony of G F7 that Mother had threatened to kill him and that

he was "fearful" of Mother, was not credible. In finding that cg Flacked

credibility regarding his assertions that his mother has thr~atened him and

· ·pnyslcmy-abus-ed·-him-;····the-e0u·r-t-not~d ..-that.J:he-.chiJ~t..est1mony~ ..w_a_s _

ae·1iberate and..ca'lcu'lated: that he did not; show emot:ion ·under the . -·-·-·--···

circumstances and that by his conduct.and demeanor, c9111!1t was·operat1ng ·

under a clear agenda to manipulate.the custody order. T~.e cq1.11;t al~o .

53RD commented on a ce 11 phone vt deo wh, ch shows that GS ,·s g,v1 ng his mother

JUDICIAL a hard time, that he is talking back to his mother and being difficult and

OISTRIC'l" ·unreasonable, but that Mother exercised a 9reat deal of patience in dealing

with cg; I and his unacceptable behavior ,n that situation.

fr.NC!! COUNTY

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entered the Accelerated Rehabilitative Disposition Program for a

period of six months. Father testified that he had forgott~n

that he had the items in his briefcase and that he generally

carried a loaded firearm, that he had obtained from a friend who

was in the scrap recycling business, for his own protection as

he was afraid that Mother would harm him and that he generally

carried the loaded firearm to the efforts to ~ffectu~t~ custody

exchanges.

T~e foregoing.circumstances wherein ·Mother· was.awarded

primary· physical custody, but the same was never·accomplished,

created a new wave of petitions for special relief, contempt and

ultimately, competing claims for modification of the October 1,

2013 custody order, ··all of which petitions, mo't ions and

modification requests are being presently before the court for

.di sposi ti on. 4

OD December 3, io13, Mother filed an emergency petition for

special. relief asserting that Father has continued in a

relentless ca~paign to undermine and sabotage C[ 's 1ife with

Mother by making numerous false complaints of abuse and neglect;

encouraging CIIIIIII to run away from-Mother's home and go to

Father's girlfriend "s home at· Fireside; repeatedl y contacting

c 's school to make false reports of abuse; repeatedly going

• None of these motions have been previously determined. Father appealed the

.. .

. --··· . ---·

t

October ~;32013 custody order. The trial court took the position that the

Joo't:'fOl'f.S-that-were~led-du-A-n~be...P.-enden.cy_Q 6.· ctocel?'.)(,-2013,-the······

the .... ~Qpfa_

pendency of the apRea 1 deprived the court· of uri sdi cti on to decide the

After the appeal

.

;:

,. · was· resolved by- ·affi rment of ,the tr, al" court's order o . . - ·--··

· · . trial jud9e, Thomas M. Piccione, commenced p·roceedings on all matters that · .

were pending before him, but could not complete the· same because of a medical ·

!:13RD condition. The case was then assigned to senior Judge· Francis J. Forne11i,

JUDICIAL .who ultimately recused himself from the case. ,The case the~ became assigned

DISTRICT to the undersigned subsequent to Judge Fornell1's recusal order of September

16, 2014.

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to c "s therapist and telling him that Mother is "crazy" and

maligning the therapist against Mother; encouraging c to

perform poorly at school; telling··c•• that the Mother and

mate rna 1_ grand pa rents wi 11 harm him; and te 11 i ng · c to

disobey his Mother and to create conflict so that false

allegations can be generated against Mother. The petition

. . .

requested that Mother be-provided complete control over c 's

cell p~one; complete authority over the selection of CUl Ul's

therapist; giving Mother complete authority over c 's

ability to have telephone conversations with Father while in her

.cusrody: prohibiting Father from injecting himself into c 's

·herapy; prohibit c P from being.at the Fireside residence

without.Mother's· consent except when he is with Father during

court-authorized scheduled

. part~al custody

. with F~ther;

prohibiting Cllllllf from being in the care or presen~e of

. .

Father's girlfriend without Mother's consent except when Father

is exercising court-authorized partial custody; requiring

!

Lawrence county children and Youth services to provide a copy of

all reports.and investigations concerning cts111111tto Mother;

ordering that all law enforcement agencies and Lawrence county .

cvs and. any other agency return conner only to Mother, should

c leave Mother's home without her consent; and prohibiting

Father·from doing anything to undermine Mother,s authority or

undermine or sabotage c••t'' s remaining in Mother's home or

per{orm1.ng at c••' s lever'f>r-compet~ce in schoo-l-;------·--- . . . __ . __

on January.7, 2014, Mother filed an emergency supplemental

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JUDICIAL

DISTRICT petition for special relief adding a first person narrative of

l'll!:N C:£ COUNTY

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12

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CIIIIIIII'~ behavior asserting that it is a product of Father's

manipulation and coercion and requesting that the court impose

heavy monetary incentives upon Father to convi"nce him that it is

in his best interest to support c-•'s relationship with

Mother. The narrative recited c 's refusal to stay with his

Mother, each time either walking through Mother's yard back to .

Fireside, or stopping at Mother's house telling her that he was

not staying and leaving and going to the Fireside residence,

c recording w1th his cell phone his actions and an incident

on oecembe r 8, 2013 where Mother fo11 owed ca H to Fi reside,

tried to get him i nto the car with her, which he refused., with

'c r-scor-df nq her, which incident ended wi'th c staying

with Father and Father's girlfriend at Fireside and police

refusing to enforce the. order by retu.rni ng ca T to Mother.

The narrative includes repeated incidents of ca B getting off

· the bus near Mother's resi dence , wa l .king through the back _yards

to Fireside, and not staying with Mother.

on April 8, 2014, Mother filed a petition for contempt

reciting that since entry of the October 1, 2013 order, Mother,

who has primary custody of c , has only had custody of

c for one overnight on December 16, 2013 and that all other

·times conner is improperly in the custody of Father or Father's

girlfriend. Mother recites in this petition that Father pays

Jip service to the order by dropping c off at Mother's.

·. resi'dence every other .s'unday' where, rc-c- gets-out-of-tt-le-- . .

53RD

car, runs to Father's ·girlfriend's residence where Father is

JUDICIA I.

DISTRICT waiting for c Father p icks c up on the street behind

'IRlli:NC!l: COUN'l"V

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13

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Mother's residence and they depart. Mother further asserts in

this petition that Father blatantly undermines Mother's role as

a parent and speaks of her in a derogatory, condescending and

otherwise inappropriate manner in an effort to reinforce

c 's unfounded beliefs about Mother. Mother also alleges in

this petition that Father refuses to communicate with Mother and

provide her any information about c••

on 'July 1, 2014, Father .filed a petition for modification

of primary physical and legal custody reciting that c has

not spent an overnight with Mother since December, 2013 and that

·the best interest of ca . I would be served by awarding Father

.physf ca'l and 1 ega1 custody. ·

on July 28, 2014,· Mother filed an answer to the petition

for modi fi cation of custody asserting that Father has acted in .~,

defiance of the October 1, 2013 custody Qrder; that Father has

engaged in a course of conduct designed to deliberately thwart

the mother-child relationship and that awarding custody of

C£J to Father would not be in his best interest. Mother also

in said pleading counterclaimed for modification of the ~ustody

'3

order requesting that the October )(, 2013 order be modified to

limit Father to professionally supervised contact and visitation

of c at his sole .cost reciting all of the allegations made

in the previous petitions filed by Mother and also referencing

the petition for protection from abuse proceedtnq filed by

. ,;;the r ii

,.w.,.,., •••

we's"t"mo".'rei and-·· county-on~"Jamrary·-2-, -201:4-:-1:h-a-t-.-was . . based . . ., . . .

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·on the January 1, 2014 incident wherein c jumped out of the

JUOICIAL

OISTRICT car that he was occupying with Mother and also referencing· the

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January 3, 2014 incident wherein Father brought the loaded Glock

mm firearm and folding knife in his briefcase into the

Westmoreland courity court of common Pleas.

on August 26, 2014, Father filed an amended petition for

modification of the custody order specifically reciting that the

order should be modified because Mother has not exercised any

custody, legal or physical, of c since on or about December

12, 2013 and that c refusing to go to Mother's house for

Mother's periods of court-ordered custody time.

on.September 5, ·2014, Mother filed a petition for contempt

·reciting that c O was to begin school at Neshannock Junior

~enior High School on Augu~t 25, 2014, Neshannock being the

school district that cg Shad always attended, and that

Father, in direct violation of the October 1, 2013 custody

order, enrol?ed cg; in the ·Hempfield school District without

.any notice, ·discussion or other information to MQther, the

school district being in Westmoreland county, the county· in

which Father now resides. The petition further recites that

Father has continued to deny or .coerce, conspire and otherwise

control cg in an effort to deny Mother her primary physical

custody.

SUMMARY OF EVIDENCE

Father was called to testify as on cross by Mother. Father

testified that on January 3, 2014, he brought a loaded gun into

... the .Westmore 1 and .co.unty cou.rthouse :-Ims~-9mm-handg1:m-w-i-t.h- . ._:.

ten lives rounds in it. In addition, he had a folding knife in

53FIO

JUDICIAL

DISTRICT his briefcase. The weapons were in his briefcase from the day

WRENCIC C:OUN'l"Y

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before when he had come to Lawrenc~ county. He stated that·he

had these weapons in his briefcase Mother has thre~tened to kill

him and c Father stated that Mother :had j~st dragged

c from behind her SUV and he was fearful for his safety and

for c••'' s. He acknowledged that he had these weapons to use

against-Moth~r if necessary. Father carried a gun with him

nearly every day when he lived in Lawrence county. Father

testified that he had·forgotten he had the gun .and knife in his

briefcase when he entered the Westmoreland county courthouse for

the purpose of obtaining a PFA on behalf of c against

Mother. Father does have a permit to carry a firearm. The gun

had:been loaned to Father by a Mr. Lewis who· was fearful for

Father's safety. ·Mr. Lewis felt this way because·of.information

received from Father. Father still feels that he needs to

protect hi~self from Mother.

Father acknowledges that the current custody order of

october 1, ~013 provides for cg s -to be living with Mother,

althoug~ in fact c has been living with him. Fath~r

· further acknowledges completing the student enrollment form for

the Hempfie,.d Area school Di~trict and signing it on August 21,

2014·;n order to enroll conner in the Hempfield Area school

system. Father. acknowl edqed that Mother did not aqree .for him

to do this. on this form the information Father provided was

·'that c lives with him, that Ms. s-is the other

··c:a:retaker··or adul t in the home, Father's-and Ms~··· . ····-

!l3RD

contact. phone numbers are provided with no phone number for

JUDICIAi.

DISTRICT Mother. The form further required information as to "legal

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custody/court documents/special arrangements" relative to which

Father placed "Father". Father explained that he answered that

way because he felt that the current situation constituted

sp~cial··arrangements as Mother has abdicated her role as a

parent. Father felt that he had no choice but to enroll him in

Hempfield because Mother would do nothing to keep

enrolled in Neshannock. Father maintains that Mother has

refused to provide c:•• a p 1 ace to 1 i ve ..

Father. takes c every other Sunday night at 5:00 p.m.

for the custody change but Mother usually is not there.

. .

Father moved to Greensburg in July of 2013. He had

previously be~n a family physician at Family Health care

Partners in Mercer and Grove city and was admitted to the Grove

city Medical center. Father is now the Assistant clinical

Professor of Family Medicine and osteopathic Principles and

Practice at the Lake Erie college of osteopathic Medicine

located at the Seaton Hill campus in sreensburc, Pennsylvania.

Although Father had other opp9rtunities .for teaching, he chose

the Seaton Hill campus because it was the closest to where

Mother lived, foregoing other oppo_rtunities to teach at medical

schools that were farther away. ·

Father te$tified that·Mother lives on Shenango Road i~

Neshanno~k Township, Lawrence county, while Ms. slllllowns a

·residence on. Fireside Drive that is located approximately two-

·te,rth·s of a mi 1 e from Mother' s residence ..

531'!0

JUDICIAL

DISTRICT order, c-

Father noted that subsequent to the October 1, 2013 custody

_was livi_ng with Mother but cm November 7, 2013, he

IVRl!:NCI: COUNTY

11.':NNSVLVANIA

17

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began running away from Mother. Late that evening ran Cllllf

out of the house, in the evening, wearing nothing but pajamas

and a pair of socks. It was approximately 30 degrees with snow

on the ·ground. He ran from Mother's house to Fi reside Drive

where Ms. s ..... was staying. Father was called and told by Ms.

s-that c was inconsolable. Ms. s-was enroute to

take c to a hospital because he was so upset, but Father

spoke with Ms. slllllon the telephone and directed her to

return to Fireside. Th~ police called Father and Father advised

where c•• was. Father spoke. with c••, and Cl 3

·explained that he was upset because of the yelling and screaming

that was going on at Mother's home. Father wen~ to Fireside and

. .

had c sleep at Firesid~ that night. Father had sent Mother

an email telling her where c was a~d that he was safe.

Mother did not come to Fireside to·pick up CQ&lllllllllt Mother sent.

an ~mail indicating that c 's backpack and school items

would be on her front porch, and in fact, Father picked up

c 's things from Mother's front porch on the way to school

the next day at Neshannock.

The next day c refused to leave school because he did

not want to return to. his Mother ' s. Even tu a 11 y, c•• did go

to Mother's house, and she brought him to Father's house .as part

of the custody exchange in Greensburg. ca :Shad been fearful

that Mother would no·t return him to Greensburg for the custody

exchange, but once he was assured that she woulcf ao so., he

53RD

agreed to go with Mother.

JUDICIAL.

DfSTRICT

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c•• returned to Mother on the exchange day of November

10, 2013. c; was to be with Mother for the week, but on

November 13, 2013, c ;· after school, went to Fireside.

Initially, cu. had refused to leave school that day. Clllllf

had informed the guidance counselor that he would not leave

school because he would not go with his mother. Mother was

informed of the situation and sent the maternal grandmother to

attempt to get c c refused to go with her~ The

school called the police, and ·an officer Sikes was dispatched to

the school to talk to conner. .c was taken to the po1 ice

·stati-on.. Eventually the police officer drove cg to

Motheris. c exited the police vehicle, walked past

Mother's house, and over to Fireside.

on November 14, 2013, Father took c to meet with.his

therapi~t, John Moyer, and invited.Mother to attend. Mother did

not attend, and on November 15, 2013 Father took CSL 8 to

school at Neshannock. After school on that day, ca a went to

Fireside. Father emailed mother with the information as to

where c was and invited her to go pi ck up c ( J, with

Mother directing that Father. bring c to her.

on November 18, 2013, cg I. got off the bus from school,

walked passed Mother's house, and went to Fireside. Father

emailed. Mother as to where cg I was. 'The same· thing

essentially happened on November 19, 2013, and again on November

·:20, . ·2013, and again on November· 21, 2013. on Friday, Novembe·r- . ···-

53RO

22, .2013 c went to Mother's after school. That day was a

JUDICIAL.

DISTRICT custody exchange day for ca a to be returned to Father.

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c g called Father and said he would walk over to Fireside

because Mother was refusing to drive him over. Father could

hear. yelling in the background. Father went to Mother's home,

with police present, and c•• came out of the house and got

into Fathe~'s car and Father and c returned to Greensburg.

on Sunday, November 24, 2013, Father states that he .made an

effort to return c- to Mother, had driven c•• to Lawrence

county from Greensburg, Jet c•• out of the car at Mother's

whereupon· c i a knocked on the door but there was no answer.·

C15E then went to Fireside. Father sent Mother an email to

inform Mother where c .... was. Again., c.., walked to·

Fireside on November 25, 4013. on Thanksgiving Day, November

28, 2013, Ctllllllll' was to b~ with Father for Thanksgiving. At

8:00 p.m., the exchang~ tim~, c was dropped off at Mother's

but CIIII' walked to Fireside. The maternal grandmother

·followed c ..... back to Fireside in her car. Father returned

to Fireside.

on·oecember 3, 2013, the first day back to school a~er

Thanksgiving break, after. school CB S again went to Fireside.

The same scenario . repeated itself for· the rest of . the week,

whereby cg '7 would go to Fi reside instead of to Mother's

residence. Father offered that c could stay overnight

----u ...~.,riday n.ight and attend a counseling appointment with Mr. Moyer .-'•

·the next day.·. However 1 C had gone to Mother's house after

53RD

school put Mother was not there and the door was locked so

JUOICIAL

DISTRICT

.VR£NCE COUNTY

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c & q went to Fireside. Mo.ther did not come to Fi reside to get

c:••on December 8, 2013, Clllllf again went to Fireside after

s~hool. on that day, Father received a.telephone call from .

officer DeWitt of the Neshannock police advis-ing that Mother had

missing· child. · At the time,

par tarnccnt+nued

c-

gone to the police ·station about 8:00 p.m. to report c

through the week.

was at _Fireside.

on December 11,·2013,

This

as a

c~ept to Fi resi d~ but that eve_ni ng he had a band concert

also. c-

at Neshapnock Junior High school.

left

·contend~d that Mother ~ad left without

Mother attended the concert

the band concert with Father.

Clllllllf as

Father

CIIIP was

suppose~ to stay with her that night. As with each of.the

foregoing events, Father documented all these matters with

emails.

Fattier gave testimony that explained the same pattern of

Cllllllfgoing to Fireside until December 16, 2013. · on that date,

ctllllll did go to.his mother's. cllllf was on the phone with'

Father talking about a school ·project. Father-could hear Moth~r

in·the background making comments. Family members came to

Mother's home that everrinq , Afterw_ards., Father explains that

'llllll]f began to feel uncom:ortable and called hi~ saying. that he

---1

-states that c-

was afraid to stay the ni.ght and was going to run.

called him at varfous ·times during the night

Father .

until a time close to midnight when he ca1led one last time . .. . - .... - . .

53RO

asking if Father felt sure that he would be ok. The next

JUDICIAL

DISTRICT morning·Mother drove conner to school. The next day, cg O did

,'IRll:NCE COUNTY

'ENNSYLVANIA

21

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not go to Mother's but went again to Fireside. on December 17,

2013, when c~wen~ back to Fireside, ·he announced that he

was never" going to his mother's again.

Father's subsequent testimony continues with the same

ri tua 1 of c... con ti nui ng to end up at Fireside. on ch ri stmas

with Mother, with

Fireside.

the result that c-

Day conner went up to Mother's door, had a brief conversation

left and went to

c- on January 1, 2014, c-wa-s dropped off at Mother's.

left Mother's and went to Firesi"de. This time Mother

drove to Fireside fQllowing c He got into Mother's

vehicle. They drove back to Mother's home. He got out again

and ret'urned to Fi.reside a second time.· Mother and maternal

.

grandmother followed c back to Fireside again .• After an

exchange, clllllllllf got ·b~ck into the car. Mother did not return

to her home but drove in a different direction with the result

that, at a traffic l.i ght, c exited the car. Mother tried

to stop cg ?-with the result that ca ripped his pants, but

was able to exit~ C•tlll.., hid behind a convenience store,

called his father, and was in fact picked up by Father. The

police arrived shortly thereafter .. Father then.filed the

· .foregotng referenced PFA in Westm~reland county, which. was

dismissed. As a result of the PFA proceedings, Mother could

:· have no contact with • c until the PFA was dissolved on

----H·---,

:February 5, · 2014.

on ._.February 5, 2014, Father dropped· c••off in the

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JUDICIAL

DISTRIC'r driveway of Mother's home, and ca 1 immediately ran to

WR!l:NCE COUNTY

•r.NNSYLVANIA

22

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Fireside. Thereafter, the same process continues whereby CIIIIIIJ

refuses to stay at Mother's, and after school upon being dropped

at or near Mother's home goes directly to Fireside with Father

continuing to document to Mother by email where CJ • is

located. At each scheduled custody exchange thereafter, the

same pattern continued wherebx c would be dropped off at

Mother's, Conner does not stay, and goes to Fireside~ on many

of these occasions, Mother would not be at home. All of these

incidents ~hereby cu S iS'' dropped off and does not stay are

documented by ·Father in emails. This circumstance had continued

up until the time of the most recent court filings .. During ~11

this time, according to Father, ·Mother does nothing with respect

to c 's needs as it relates to education, hea'Ith care, or

extracurricular activities:

No contact occurred between Mo~her and Father relative to.

c and Mother had ·no contact with c during the summer

of 2014. Father initially thought it might be beneficial to·

enroll c•• in cyberschool in the event that things changed

but eventually decided to enroll him in Hempfield. Father

invited Mother to a band concert at Hempfield on October 27,

2014, but Mother did not attend. Mother has not participated in

any activities at the Hempfield school. Father testified to

c 's exceptional performance at Hempfield and his being

engaged in various extracurricular activities from which he has

---- ..U

benefited. c .is in the. eighth grac1e,-a:n-d-ts-i·n-acl·van-Gsd--_,_

531'10

classes. Mother has consistently refused to sign any documents

JUDICIAL

015,-RICT relating to c 's education at Hempfield.

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Mother testified that she is five feet, two inches in

height and weighs approximately one hundred thirty pounds.

Father .;s approximately six feet, two or three inches in height.

Mother denied that she has ever threatened to shoot Father or to

have ·ever heard him make that allegation in the past. In fact,

she has never touched a firearm in her life. on the.other hand,

Father has threatened her. In 2012, Father told Mother that she

deserved to die. she just learned in the course of these

-

proceedings, the day before her testimony, that Father was

carrying a loaded firearm at the custody exchanges. Mother

. .

· testified that she has never done anything to c•• in words· or

deeds that in any way conveyed that she would harm him and in

fact she has never physically harmed him.

The. mother described the.standard exchange since October 1,

2013 by explaining that Father pulls .into the driveway; cg 7

comes to the door, either ringing the bell or ~nocking; Mother

opens the door; c holds up his phone and records, stat,ng

"I am j ust he re to te 11 you that I am not staying"; cg 7 then

walks through the front yard between the houses and through the

back yard holding his cell phone up the whole time recording and

walking·over to the Fireside residence. Father sits in the

driveway for a minute and then backs out and drive~ over to

Fi reside.

illegal drugs, .although

•.. _

Mother is employed as a dietician.

-....

she has·been

.. _

Mother has never used

accused of such by .Father.

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Mother denies that she has abdicated her respon~ibility as a

JUDICIAL

DISTRICT parent. she did not see any need to respond to an email where

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Father wanted c•• to be in cyber school because c•a:111.. was

already enrolled in Neshannock where he had always gone to

school and where he had done very well. ~while in Neshannock his

grades where A's and he engaged in activities such as soccer, .

baseball, took flying lessons and played a musical instrument.

Mother noted that ca ff had taken flying lessons s ince he was

about ten years ·of age. The maternal grandfather would often

take c••to the flying Iessons as c••enjoyed a close

relationship with, until the flying lessons were stopped about a

year ago at Father's insistence. c was very interested in

the flying lessons and Mother would participate with c in

the lessons as part of it included classwork with which Mother

helped ca R.

Mother noted in her testimony that when Father calls and

spends long ·periods of time with c on the phone, c111111•

will thereafter be distant, reserved and avoid h~r. When c1111111•

is ·out of his father's sphere of influence then he is good and

that he is happy, engaged and interacts with Mother s~ch as

wanting to watch a· movie. c•• is very involved with h+s

friends when he resides with Mother. Mother denies that she had

no plans for.c•• for school as the reality is that c•• is

to reside at her house.and he would normally go to. Neshannock.at

the start of the school year just like he has done every other

year. There is no reenrollment process to continue at the same

schoo l, she found .out. that Father had made other school pl.ans

5)RD

for c by called Neshannock on the first day of school and

JUOICIAt.

DISTRICT learning that he was not there. She does not go to C 's

i'!ltMCII: COUNTY

l'INSYLVANIA

25

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functions at Hempfield because she does not feel that·it is wise

to be near Father, as she is deathly afraid of him. she cannot

sign forms verifying any reading assignments as she has not been

able to interact with conner or to even speak to him about it.'

she testifies that she can't sign a form saying that c T has

read something when she does not if he truly did it. she has

not .had the interaction with c•• because c••1tdoes not come

to her .house.

Her response to Father's claim that he complies with the

I

order by bringing cg 2 to her house every other Sunday at . '•

exchange time is that she is normally there although she is not·

there every single Sunday because some Sundays he comes and some

he doesn't and in fact she·knows that c will not stay but

will simply ~ome ·to her door and say terrible things; things

that sh~ knows he does not want to say but he will record .her on

his phone for him to tell things such as telling Dr. Chambers

that she had answered the door ·naked, which was false. she does

not go to Fireside to pick-up·c• .. .., after he leaves her.

residence because she knows that c is not going to come

with her. The last time she tried to go Fi resi de before January

1, 2014, she was greeted by the p~ljce and was told she was

under arrest for trespassing. she does not feel comfor tab'l e

attending sessions with Mr. Moyer as she feels that he is I'

----U

manipulated by Father. when she di~ show up at appointments ··,·

scheduled for her by Mr. Moyer,·M·r. ·Moyer falsely ~ssert·ee1that:----- . ...

53RD

the. appointment had·been changed even though her appointments

JUDICIAL

DISTRICT cards show the correct date. When she showed up for her

Rl!NC:5: COUNTY

NNSYLVANIA

26

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orthodontist appointments, she would find out that Father had.

cancelled the appointment. The orthodontist refused to see

Mother without Father being pre~ent. Afterwards, she would be

accused of not parti~ipating. Mother also referenced disturbing

photos on Internet on or. Moyer's website that appear to have

pages of young girls with inappropriate names.

Her ~xplana~ion of the QCcurrence on November 7, 2013 was

,.

that c left her house about 9:30 in the evening after

everyone, including~ , had gone 'to bed. There had been no

issues that evening. About 9:30 on the 7th, c got up to

use the bathroom, and took of down the steps and straight out

the front door wearing his pajamas. There had been no

interaction.with c from the ·time he went to bed until he

le~. He did have access to a telephone .. Issues.had previously

. .

risen with respect to .cs 5 using a telephone.to have

conversations with Father. Generally after he would hang up the

phon.e with his Father he would have a tantrum. Approximately .

two years ago, after a conversation with Father, Cb 7 hung up

the phone and then began screaming saying that Mother was going.

to kill him. on this occa~ion, after c ran out the door in

hi's pajamas, Mother ·called the poli<=e because it was dark and 20

to 30 deqrees in temperature. when cg 5 would leave her home

previously, he typically would go to Fireside. The police

~ventually contacted her and asked her to come to the police

station, which ·she did. At . the po Ii ce s-nrr;-n-rr,she-wa-s--me:t-w.ith.----·-.-·

53PID

two police officers who advised that c was in cranberry

JU,DICIAI.

OISTRICT with Ms. sichak. she then received an email from Father who

,WRl!:NClt COUNTY

l'f;NNBYI.VANIA

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advised . that he had c and would put him to bed. she did

not at that point try to pick up CtlllJ because she did not want

to be accused of abusin~ him, beating him, dragging him or that

kind of thing. she next saw c at the police station the

next day but c refused to come home with her.

Mother is of the opinion that the situation can be

_s_

rectified if Fi-reside drive taken out of the picture and that

the interaction with Father and Ms.

elimin·ated or stopped, and if that were the situation, C£

needs to be

f

would be back to his old self within a week or two.

r, 2013 order came out

Mother notes that when the October

there were approximately 'two ·solid weeks that ca 8 did not

have to go to Greensburg and c:•slll•was fine with the situation.

I

When it was time for her take.c to his father's he was not

in any hurry to go and in fact did not want to leave before the

~equired time and referenced that he had bad stomach ache and

didn't feel good.

c was returned to her on Sunday, and he was fine

through the week. Everything was fine·until the event of

November 7, 2013. Before that, c•• was warm and

· affecti onate , · -they did things together, he had friends over and

.he was doing well at school.

Mother denies cursing, screaming and saying derogatory

:things while he would be on ~he phone with.Father .

. . . . , · · Mother did not .see c on his 1 ast . birthday, February

531'10

· 10, 2014, because ca I doesn't come to her house. The last

JUDICIAL

DISTRICT -t ime she saw c•• before his birthday was January 1, 2014.

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Mother has his birthday presents and his Christmas presents

and he will get them when he comes ·home.

Mother does not_go to the Hempfield school activities

because she is fearful of Father·and Ms. s .......

Mother went to the last Christmas concert at Neshannock

although he was. supposed to be at her house but was not. Mother

did not;" see c••s• over. the chri stmas ho 1 i days of 2014 at a 11 .

Cg 3 says to her when he is dropped· off that he just doesn't

want to stay; that. he can1t stay; that he is not. going to stay

here; and that he is afraid of her. He speaks 1ike a robot,

holding his phone recording, stating "I am afraid to stay here,

I am no~ staying here, I am afraid to stay here." she indicated

that she has never seen another human being act that w.ay.

At.the christm~s concert she went to the band room to say

hello to c•• but he would not even look at her.

Mother testified that he has never authorized c•• •• to be

at Ms. s~'s house on Firesjde nor to be living with Father

at Greensburg other than the time called for in the custody

order. 'Mother has not authorized C••• to be enrolled in the

Hempfield school District.

on January 1, 2014, c•• was dropped off at 8:00 p.m. by

Father. Father pulled out of the driveway and left. c••

walked through.the yard and went to Fireside. The maternal

· · · · ----·-- grandmother then picked Mother up in her car and they followed

. , n tnec_a_r_, -----·- ---

C•£•• to Fi reside. As ·they were

they attempted to talk to him and eventua 11 y got into the

53Rb

JUDICIAL

OISTRICT car. They pulled back into Mother's driveway; but as soon as

V!tENCI!'. COUNTY

ENNSYLVANIA

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they did, c•• opened the door and took off again towards

Fireside. Mother and maternal grandmother followed c•&llllt

again. They ~ent back to Fireside. went back into the

front door and was there for a minute and then Father came out

of the neighbor's house and went into the Fireside.residence.

c then came back outside and got into the car. They

traveled out of Fireside and attempted to go to the home of

Mother'~ girlfriend. when they got to a red light, Mother heard

c 's· seatbelt unct t ck and feared that c was going to

jump out of the car. Mother tpld maternal grandmother.to go so

that cm s would not be able to jump out. c opened the

door and Mother turned to grab his leg so that he would not jump

out. c yanked his leg and his jeans ripped and c••

jumped out of the car. Mother then called the police.

Grandmother turned the car around and they attempted to· look for

c but could not find him. c was later found at

Fireside. -Father was at Fireside when c turned up there.

Mother learned that c had told his father that he

wanted to stab her when she received medical records from Dr.

stroyer, Cllllll's physician, which indicated that ctllllllt's

statement that he wanted to stab Mother was made appr-ox'[matie'ly

one year prior to the time that she obtained the records.

Father had never talked to Mother about that statement. At the

time the statement was to have been made, c had been coming

to Moth"~r·' s house· and ···h~vi ng .

regul.~r- contact wi.th her. Tne ···--· ----

53RO

record actually indicated that Father had made that report to

JUDICIAL

DISTRICT br. strayer, not cf/1/1111111.

"'Rli:NC~ COUNTY

•l!;NNSYLVANIA

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on December 16, 2013, c got off the bus: and wa 1 ked

into Mother's home. c 5 had not been with her for over a

inonth prior to.December 16. on December 16 , 2013 , c - F did

his homework. It was a family member's birthday. After Cg F

did his·homework, he played a video game. Mother's niece and

nephew were over and cg 7 interacted with them and with the

maternal grandparents. c was his old self and was fine

with Mother. He was warm, affectionate and loving. cs ?

spent the night at Mother's on December 16, 2013. The next

morning, Mother·drove c to school. He was fine. Mother

asked cu J if would be coming home after school and ca 7

said "Yes". ·However, cu p did not come to her home after

school that day and the next time Mother saw ca ff was on

January 1, 2014 when the unfor-tunate incident with cu R

jumping out of the car occurred~

Mother tries calling c on the phone but he doesn't

answer •.

ca S has a pet at Mother's home. It is a ~og named Rex.

c always had a good relationship with Rex. Rex slept on

. .

the bed with c However, when ca 5 's re 1 ati onshd p with

Mother began to deteriorate, his relationship wi~h Rex also

deteriorated.

Mother denied ever being unclothed at .any time that she had

opened the door for c She also denied that a video exists

---IJ

showing that she had no ·clothes·.on. as the tim.e 6eing re'f1!re·n·e&1-

33RO

was the.'time. when she answered the door and had a nightgown on.

JUDICIAL

DISTRICT

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•G:NNSYt.VANIA

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Mother explained that. she and the maternal grandfather

stopped t~king c to the flight lessons after c accused

her and the maternal grandfather.of bashing his head off the

wall or.otherwise attacking him in November. of 2012.

When asked why Mother has not attended to any of c 's

needs, physical, mental, educational· or otherwise, Mother

re~ponded that it is because Cl will not talk to her and

will not come to her house.

Delores Dicola, the maternal grandmother, testified that

'

C]p zr was a perfect child until things began to change in 2012.

The change-inc 's attitude ~oincided with long telephone

calls from his father. These telephone calls would be hours

long. ·

Before the phone calls ~·•a...•would be his normal loving

·self and then afterwards he would become sullen, non-talkative

and belligerent.

The maternal grandmother also described the times that

ca would be. dropped off at the custody exchange and would

not stay.. she described that CJ p would get out of the car,

not even come to the front door, go to the right of the garage

and around to the back of the yard 1,.1p to the next street and

towards Fireside. The.entire time he would be holding his phone

video recording the event. At times. the maternal grandmother

would yell out that she loved him and· needed to see him and he

would just keep videoing and. keep ·waTl<·ing. Th-e-·ma:te·rna=t,----

grandmother noted tha~ in the last few months he started coming

~3RD

JUDICIAL.

DISTRICT to the door. He would open the door, or.ring the doorpell or

WFIENCE!: COUNTV

;·e:NNSYLVANIA

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knock, and he would just state that he was not staying and

leave. c is now different in that he won't talk, he stares

and continuously videos.

The witness also corroborated Mother's t~stimony as to

c being fine for the two-week period after the October 1,

2013 custody order was issued and was· sullen when he had to be

returned to his father.

The witness then described seeing him on December 16, ·2013

when he came to Mother's house and stayed. It was the birthday

of maternal grandfather and a party was held. c was fine,

'he interacted with his cousins and ·played video games. The

·witness did not see c s again until January 1, 2014. The

wi tness: then· corroborated Mother.' s version of what occur-red on

January 1, 2014 when c kept leaving Mother's residence for

Fireside and eventually jumped out of her car when stopped at a

stop light.

The witness testified to the close relationship that CIII ..

enjoyed with her husband, wherein c referred to him as

"Pop". They did everything together and went everywhere

together. c would rather be with "Pop" than with anybody.

Things changed after the incident that led to the PFA and the

accusati·on that her husband supposedly beat h i s head on the wall

or that·he attacked him. since that time, the maternal

-.

'grandfather has seen c only a couple of times. one ti.me

was the ·bi r.thday pa.rty .. of December 16, 20-..,. 1'3-:r--. -.----------.J

l53RO

when Father retook the stand, he descriQed his version of

JUDICIAL

DISTRICT the events of December 16, 2013, wherein he related that he had

Fil!NCe: COUNTY

NNSYL.VANIA

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received a series of telephone calls through the evening from

c distressed and th.reatening to run away from his Mother.

Father stated that he was able to get cg p calmed down but

after that he flatly refused to return to his mother's.

on Janu.ary 1, 2014, he was able to persuade ca I to go

with his mother. After the )anuary 1, 2014 event wherein c:••

had removed himself from the maternal grandmother's vehicle,

c:•- consistently

,t .

refused to return to his ·mother.

He· summarized that he continued to take c· to Mother's

home for the custody exchanges.but·eventua11y Mother even

stopped being at home.

Father testified to informing Mother of all school

activities bu~ she has ahosen not to appear at any of them. she

was specifically

.•

informed of c 's band concert held on

December 9, 2014 and she.did not appear.

Father continues to take c:t111111• to Mother'~· home for the

custody exchanges. she is general~y not there, and he confirms

having brought him there with an email each time.

on November 23, 2014, c was dropped·off and Mother and

maternal grandmother were there·, there was some discussion at

the doo~ and c left, going back to Fireside again.

Th~ last custody exchange before the hearing of January 12,

2014 was on January 4, 2014. Father brought c f ~o Mother's

·-home~ Mother was not home and they returned to Greensburg.

----J

Father testified that he encouraged- cg pi] to llaVec:ontact __. -.

!S3RP

with his maternal grandmother. ca I is adamant that he will

JUDICIAL

DISTRICT have no contact with his maternal grandfather. cg I sent the

!VRl'i:NCE COUN'TV

'11:NNSVLVJ\HIA

34

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maternal grandmother a card inviting her to lunch at the olive

Garden in cranberry on a Saturday in necember , 2014. The

maternal-grandmother responded with a text message indicating

that she would look forward to lunch. The lunch meeting between

c 17 and his maternal grandmother did occur and by all

accounts, both enjoyed it.

Father

. testified that c '

5 continues to excel in schoo'l

and is starting to switch over from trumpet to playing the tuba.

In addition to his band activity, he is in soy scouts. ·.Father

described c presently as happy) getting .alohg well in

school, getting along well with his frien~s, and that he is one

of the most pleasant kids you could meet. He is helpful around

the house and does chores. He excels academically. He no

longer has the panic attacks that he used to have while at his

mother's house.

The maternal grandmother retook the stand and testified as

to the luncheon that she had with c It was in November,

2014 before·Thanksgiving. c sent her a card in the mail

inviting her to.go to lunch with him in cranberry. The card

_requested that she RSVP by phone. The card indicated that j~st

she should go. she responded that she would mee t him at the

olive Garden in cranberry at noon on the appointed Saturday. He

was by himself an~ the luncheon lasted one.hour. The maternal

grandmother attempted to bring up the mother but c ·said he

was ·not' there to talk about -h'i s mother. c dfcl ask a:lnmt-:--·--:-

53RO

his dog, Rex. The lunch~on ended well. Father picked c up

JUDICIAL

DISTRICT after the Iunch . The maternal grandmother and cg 9 ·agreed

IRIINC:ll: COUNTY

~NNSVLVANIA

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that they would possibly do it again but c was to get in

touch with her if he wanted to have lunch again .

. On or about December.. 13, 2014, materna·l grandmother sent

cg a by text a picture of her puppy. c 1sr's response was to

question whether Mother stole another dog from another

boyfriend. Grandmother responded .that was not nice and that

c had hurt her feelings. Grandmother next sent another

response :5aying "what happened to the c · I knew? You are

certainly not him. 11

Further response from ca R included ·the

statement that "The c you knew, he has grown up and is

·thinking for himself. I am not going to let anyone abuse ine."

. The maternal grandfather, Johh Dicola, Jr., testified that

he had a good relationship with c from the time he·was born

. ~ .

. unti 1 about October or November of 2013. · He and cs 8 did many

things together including go on vacations together. c was

interested in. the maternal grandfather's hobby of restoring Jeep

vehicles and worked together in the garage often. He and ca I

took flying lessons together. The witness testified that he

loves c.. 111.ana there is nothing that.he wo~ldD't do for him.

The witness has not seen c since·oecember 16, 2013.

Mother had a party at her ho~se with the other·son and his

children and some fr+ends and c was there. Cc£ I was

fine. They had cake and ice cream. The matern~l grandfather

has. ~ot had any contact with c since that time. A~er

··that, 'c was different. He was . fearfuT-·ana not~hrsame--·--- -·····

SJRO young man that he knew a month earlier. The witness indicated

JUDICIAL

OISTRIC'l"

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Circulated 09/23/2015 11:13 AM

that c•• seems to be· replicating his father's personality and

mannerisms.

The maternal grandfather was also asked.about the events of

November 25, 2012 which led to the PFA proceeding against him.

that wa~· dismissed •. The witness.explained that he was at home

when Mother called him and asked him to come over to the house.

He could hear that c:t11111•was screaming. When he arrived,

c•••ran into his bedroom and was screaming. c•• was

screaming "Don't come ~ear me--you're going to kill me. The 11

witness pushed the·door.open and he was holding c: .. ...-'s legs

while Mother was ~olding c••'s arms , C••• was flailing all

over the place and his head was bouncjng on the carpet as he was

flailing. The whole event took about five minutes.. Before this

event, there had never been any confrontation. in any way between

c and his maternal g~andfather. . same night,

That very

c a S ca 1 med down. He stopped his ranting and fl ai 1 i ng and the·

witness let go of his legs and Mother let go of his arms.

cg went to the bathroom, then came out and said 'he was

hungry. He ate a bowl of cereal and then went and sat on the

couch. The witness and cu 7 then had a discussion about a new

Jeep vehicle that t~e witness had purchased and aske~ him if he

would like to take a ride in it after school on Mpnday night.

c aid, "That wou.1 d be good' 1, .and the next night they did

take a ride .to the Hermitage Dairy Queen and got ice cream. .·.

-----. ·····------;--:--------------

... " Ray~ond Ki 11 en .. testi.fi. ed. f-!e i s·-t..-he_g_u_i aance counse1<5r.~-····.--·. : ·-····:

.

53RO

Wendover Middle School, which is a part of the Hempfield School

JUDICIAL

OISTRICi District. On· the first day of school, c111•z• came to his office

IRE:NCS: COVNTV

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and wanted Killen to know that he was living with his dad and he

was worried thftt he was not going to be able to continue living

with his dad. The witness also teaches a guidance class that

meets o~e out of every six school days. The witness also

assisted c when he was dressed as a school Spartan for open

House. c is doing fine in his class. There is a nice

group of kids that cg 5 is friends with. cg f is doing very

well in school. He achieved distinguish honor, which is ninety-

six percent grade potrrt: average or higher and he is on track to

do that.for the second term as well. The witness had made notes

of what··c- had .said to him about what is going on with him

·at home. The notes indicate that c""" said that he lives wit~

his dad but mom. is fighting for custody; that he does not want

to l~ve with mom; that she has become viole~t w~th him,

screaming, calling him ·stupid, tackling him when he tries to

call his dad and that cvs has been involved and has done

nothing. The notes further indicate that the maternal

grandfather broke down the door to·his room and tackled him and

has hit'him.

The witness did indicate that he found it somewhat unusual·

that c came' to him to explain what was goi_ng _on with him on

that first or second d~y of school because CIIIIIII did not yet

know him and did not at· that poi'nt have a comfort.level with

him.

· Robe·rt Raymond Ko11 ar tes·t'ff, ecr:--Re,-s--a::-'te-ache-r-i-n-the--~- .....

53,tO

JUDICIAL

DISTRICT

WRli'.NC:rt COUNTY

and c-

same middle school as Mr. Killen.

is one of his students.'

He teaches American History

conner is doing "superb" in

..

.•

"El'INSYLVAl'IIA

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his class. He scored a ninety-eight percent the first quarter

and will get a ninety-nine percent for the second quarter. He

is polite and he is willing to add to the conversations that

invo~ve dialogue over historical topics. He asks a lot of

. .

questions and seems to be enjoying the class.

Dr. Bruce chambers, a licensed psychologist, was appointed·

by the court to perform a custody evaluation and was·called to

testify. or. chambers has impressive qualifications having

performed over 600 child custody evaluations and is involved in

training child psychology fellows at university of Pittsburgh.

He has provided expert reports and testimony in a number of

courts in the commonwealth oi Pen~sy1vania. He holds a Ph.D. in

Human Ecology but not in Psychology. At.present, or. chambers

does not have a clinical practice, only performing forensic

work.

In performing his evaluation, or. chambers met with and

observed Mother, Father~ c...-,, and Ms. stllll. He also

reviewed the three previous custody evaluations that were

conducted in this case. He conducted psychological tests of

Mother and Father and found no evidence of psychopathology,

although he did fi"nd that both parents have personality traits

that compromise both parent's capacity to cooperate a~d to work

·in the child's best interest.

· or ; Chambers found credible cg 's statements to him that

.. ··--·-----·-·-H---

·:Mdthe r had a temper and expres-sed her anger and l,ad""-b-e-en-abtrsive-·- --

53RD

toward him through the years, causing ca: W to have trust

JUDICIAL

DISTRICT issues with Mother and further noting that or. Moyer had

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39

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indicated to him that there were challenges with trust between

cg and his mother and tjealing with Mother's anger and

expi"'osiveness. or . chambers stated that the anger and

explosiveness of Mother is emotionally stressful for C.. llllllllt

Dr. chambers also testified that ·c is doing well because of

the lessening or removal of the stress.given his current

situation, in that being removed from the stress has helped to

stabilize him emotionally and in other ways as well. Dr~

This text is long and has been trimmed here. Open the source document for the complete record.